Under section 9 of the Education (Scotland) Act 1980, parents and guardians can withdraw their children from religious education and observance in school. However, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 , incorporates parts of the United Nations Convention on the Rights of the Child into Scots law, including a child's right to be heard. This results in a tension: the UNCRC Act would require children be able to express their views on such matters, but there is no process in the 1980 Act for a child’s views be taken into account. Separately, the UNCRC Act currently does not explicitly allow an authority to act incompatibly with UNCRC requirements where existing legislation requires the incompatible action. On 30 April 2025, the Children (Withdrawal from Religious Education and Amendment of UNCRC Compatibility Duty) (Scotland) Bill 2025 was formally introduced to the Scottish Parliament and proposes amendments to achieve two distinct objectives:
- to require that a child's views are considered when parents are exercising their right to withdraw their child from an education setting;
- to add an exemption to the current section 6 compatibility duty of the UNCRC Act, in circumstances where an authority is compelled (by existing legislation) to act incompatibility with the UNCRC requirements.
Background
The UNCRC Act came into force on 16 July 2024. Most notably, section 6(1) of the UNCRC Act imposes a compatibility duty on public authorities, requiring compliance with the UNCRC requirements when performing a “relevant function”.
As discussed in our previous insight blog, the UNCRC Act is concerned mainly with functions of public bodies in Scotland that are conferred Acts of the Scottish Parliament, Scottish Statutory Instruments or Scottish common law. Functions conferred by Acts of the UK Parliament fall outside its scope.
Amendment to Religious Education
Section 1 of the Bill proposes to insert a new section of the 1980 Act to include and account for the views of the child.
It provides that when a child’s parent or guardian opts to withdraw their child from religious education or observance at school, the education operator (most often the school) must inform the child and give them a chance to express their views (where the child is capable of expressing views). Where a child objects to a withdrawal request, the school should seek to discuss the objection with the parent and child. Ultimately, the school would have to follow the child’s wishes and refuse to give effect to the withdrawal request to the extent that the child objects to it.
The Bill also provides for the Scottish Government to issue guidance to which schools and other operators will have to have regard.
Amendment to the UNCRC
The UNCRC Act at section 6(4) provides that, whilst it is unlawful for public authorities to act incompatibly with the UNCRC requirements when performing relevant functions, there is an exception if the public authority is required or entitled to act incompatibly due to powers which originate from the UK Parliament.
Section 2 of the Bill proposes that this exemption is extended to Scottish legislation. Section 2 provides that a public authority would be exempt from the section 6 compatibility duty if it is required to act incompatibly by Scottish legislation. However, unlike section 6(4) which allows a public authority to act incompatibly with UNCRC requirements if UK legislation entitles or requires them to act in that way, the section proposed by the Bill allows incompatibility only if the Scottish legislation requires them to act in that way. The purpose of this section is said by Scottish Government to be to remove the potential for public authorities to have to decide whether to act in a way that puts them in breach of the compatibility duty of the UNCRC Act or to act in a way that puts them in breach of another legal duty in devolved legislation.
Key Takeaways if the Bill Passes:
- Children have a right to express their opinion in their withdrawal from religious observance and/or education.
- Where a child objects to their parents request for withdrawal from religious observance and/or education, the child’s view will be paramount depending on age, maturity and ability to make the decision.
- The compatibility duty of the UNCRC Act would be qualified to entitle a public body to act incompatibly where that is required by Scottish legislation.
Next Steps
The Bill is currently at Stage 1 of the legislative process. At this stage, the Bill is being considered by the Equalities, Human Rights and Civil Justice Committee, which has launched a public call for views to gather evidence and opinions from stakeholders, including educators, legal experts, and the general public. This consultation remains open until 1 September 2025.
Following the Committee's consideration, a Stage 1 report will be published, and the Bill will proceed to a debate and vote in the Scottish Parliament. If the general principles are agreed upon, the Bill will advance to Stage 2, where detailed scrutiny and potential amendments will be considered. If not, the Bill will fall and will not proceed further.
If you have any questions relating to the above, or any other matter, please get in touch with Fiona McLeod, Sarah Keir, or your usual Brodies LLP contact.
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